Public international law - Essay Example

?Public international law Critically assess whether Kosovo satisfies the criteria for hood under international law. Your analysis should be based on general international practice, including the outcomes of statehood claims similar to that of Kosovo. Based on international laws, particularly the Montevideo Convention, the elements of a state are: population, territory, government, and the capacity to enter into relations with other states1. This is the current standard which is being recognized by international laws on the recognition of statehood. In establishing whether a political entity can be considered a state, these elements have to be primarily considered. Applying these elements to the assessment of Kosovo, however, is not as simple due to a host of issues involved in its bid for statehood. Nevertheless, these primary elements shall first be considered in assessing Kosovo’s claim to statehood. One of the elements of statehood is population. Population refers to the “a group of people that live in the same land or region”2. In order for an entity to fulfil this requirement of statehood, its people must settle themselves at a definite place. There is an element of permanency to this population where the people are not likely to fall apart but can be expected to persist for a period of time3. As far is Kosovo is concerned, it fulfils this requirement of statehood as it has a group of people living in a specific place and their population is sufficient to support state processes. Shared ethnic traditions and religions are not important elements within this group of people for as long as there are sufficient commonalities in terms of language, traditions, values, and beliefs to support harmonious relations with each other. As far as Kosovo is concerned, they share common beliefs, languages, and values as a people, with majority of the people being Albanians, speaking in the Albanian, Serbian, Turkish, and Roma languages. Some of them are Muslims, Serbian Orthodox, and Catholics. These qualities provide sufficient groupings and commonalities among the people, groupings which are normally expected of any state or political entity. Population as an element of statehood has to be evaluated in terms of territory and government. Scholars highlight the fact that population is one of the more important elements of the state because territory and government elements are present only as a means of serving the population4. Territory defines an area which is well-defined, an area which is inhabited by the people of a state. It is usually defined by its physical borders which have long been defined by kings, emperors, and other significant government officials5. The Encyclopedia of Public International Law also defines territory as a crucial element of statehood because government authorities are endowed with the right and authority to “take measures in that specific area”6. Governments have exclusive control over their territories, one which cannot legally be intruded on by other states and political entities and states. As far as Kosovo is concerned, it also fulfils this element of statehood, as it has a defined territory where its population is based and upon which it can support its people. Government is also another element of statehood. In general, governments are made up of individuals who have been chosen by the people or by other authorities to carry out political functions and to manage state affairs7. Based on the international perspective, governments are independent entities which enforce authority over a certain population living in a territory8. Governments are usually decided by the general population and in areas where democratic processes are in place, these government officials represent the interests of the people, enforce rules, and implement policies. Various states have varying governments, and each of these types of government is mostly fashioned to fit the needs of the people. Governments have end goals in mind and most of these goals relate to providing common goods to the people. This government is usually divided into three branches and three main functions – executive, legislative, and judiciary9. These are equally divided powers with the appropriate checks and balances. Effective government is an important requirement for statehood because this effective government “contains centralized administrative and legislative organs within a stable political community”10. Government as a requisite of statehood also implies that it is free and independent of other foreign authorities exercising authority over its territory and other state elements11. As far as Kosovo is concerned, it has a government. However, in evaluating the independence of this government, it is challenging to make such a judgment because its government is not recognized by its mother state Serbia. Serbia still believes that it has government control over Kosovo and that Kosovo is one of its provinces. This would not therefore lend any independence to the government of Kosovo. Independence and sovereignty are also elements of the state, ones which are highly relevant to this discussion. The requirement of independence refers to the centrality of its political organs12. Independence also refers to the monopoly which the state has over its executive and political policies and to exercise such monopoly to the exclusion of other states and political entities. Once again, this element remains dubious elements in Kosovo’s statehood, primarily because of the unsettled claims of its mother state Yugoslavia over its political processes. Perhaps the element of statehood which bears the most weight on Kosovo’s determination of statehood is its self-declaration. For the most part, this element is not always used to claim legitimacy as a state. Analysts Werner and Wessel are however quick to point out that self-declaration is an important element of statehood13. Since this element is crucial to the discussion on Kosovo, it shall be considered a pertinent element of statehood. This element basically supports a claim and declaration of statehood as a means of gaining statehood. Basically however, this declaration or claim of statehood has been objected to by various states because a simple declaration of statehood cannot support actual statehood, especially when the rest of the political community does not recognize or support such claim14. Background of Kosovo The Socialist Federal Republic of Yugoslavia was considered as a multiethnic state under WWII leader Marshal Tito. Tito had control of six republics, namely Serbia, Croatia, Slovenia, Montenegro, Macedonia, and Bosnia-Herzegovina, as well as two autonomous provinces within Serbia – Kosovo and Vojvodina15. After Tito died in 1980, SFRY slowly fragmented and Serbian leader Milosevic emerged as leader seeking control over SFRY. Serbia was significantly repressive over its ethnic groups and hostilities often broke out within the region between the Yugoslav People’s Army and armed resistance from Croatia, Bosnia-Herzegovina and Kosovo16. In 1991, Slovenia, Croatia, Macedonia, and Bosnia-Herzegovina declared their independence from SFRY, requesting recognition from the European Community17. Kosovo, as an autonomous province of Serbia, attempted to follow suit, but their declaration was not recognized by the European community due to Serbian control over the province18. Statehood was granted to the four political entities, but not to Kosovo. In the meantime, killings, rape, and ethnic cleansing persisted in Kosovo with Serbians largely perpetuating crimes against humanity against the Albanian Kosovars. Armed resistance against Serbian rule gained ground as a result of such violence. NATO launched bombing campaigns against Yugoslavia to force Milosevic to cease in its violent activities in Kosovo19. This later prompted Yugoslavia to agree to a military rule of Kosovo through a multilateral force and through a transitional UN administration. These UN missions to the Kosovo were authorized by the Security Council. The UNMIK has since been recognized as an entity tasked with supporting the establishment of self-government, pending final settlement of Kosovo’s final status20. The question of Kosovo’s political status has therefore been left to the Serbian representatives and the Kosovar Albanians. Capacity to enter into relations Another element of statehood is the capacity to enter into relations with other states21. This element is not strictly recognized by other states and theorists as an element of statehood because these theorists believe that the capacity to enter into government relations is a capacity which is based on the first three elements. It is not therefore an independent element, but a product of the first three elements22. Nevertheless, a specific discussion of its merits shall be considered below. A state’s ability to enter into relations with other states is also a criterion to statehood. It is an element which can be understood in two ways. First is that the capacity to enter into relations with other states is a clear and necessary element of effective governance23. The requirement for a government in its exercise of jurisdiction is for it to have sovereignty and independence; this also means physically separate entity which has the legal ability to act in the way it wishes, within the standards laid down by international law. Therefore, this implies the lack of direct or indirect subjugation to the legal capacity of a third state24. This requisite can also be understood in terms of accepting the idea that establishing a state also involves the establishment of areas as ‘state-areas’, particularly areas which have international relations and legal consequences25. Recognition, in this case is a primary requirement to statehood. When the first interpretation would be considered, Kosovo does not seem to fulfil this qualification; but for the second interpretation, it partially fulfils it. It has the ability to exercise its jurisdiction on states which have already acknowledged it as state, however it does not have the same capacity to those who do not recognize its statehood26. The right to self-determination of the people is usually fulfilled via internal self-determination or the right of the state to seek political, economic, social, and cultural development within its bounds as a state27. This right belongs to people, and does not make any particular distinction as to the precise description of the term. This right is also managed differently from the rights granted to minorities under the ICCPR and the ICSECR28. It is not also clear how minorities are to be qualified from peoples. The International Commission of Jurists attempted to define people through a list of qualities and the list included the following features: historical, racial or ethnic, cultural or linguistic, religious of ideological, geographical or territorial, economic and quantitative29. The Committee also qualified that these features are not essential, and the entire combination of the different elements would not make up an exact definition of what would constitute a people. The right to self-determination was also qualified to be based on political considerations and the exercise of such right is largely political30. Whether or not the Albanians were already in Kosovo since the Bronze Age or from the sixth century onwards has not been clearly established as yet, however, it has been largely acknowledged that Albanians have occupied Kosovo for a long period of time31. Their boundaries have existed since 1959 and at present their population makes up 90% of Kosovo’s population. These people share a common language, religion, and traditions, as well as a shared struggle and desire for autonomy since 199132. As a part of Serbia, Kosovo has always “enjoyed a higher or lower level of autonomy in the form of a region or province and, since 1999, Kosovo has been under international administration”33. These elements indicate that Kosovo Albanians fulfil the qualities which are needed in order to fill the purpose of self-determination. In establishing a clear decision on the actual status of Kosovo, the issue of recognition of its status as a state seems to be a dominant consideration. Without the recognition of all states, Kosovo’s actions as a state would not be supported and recognized as state actions. Although recognition has a significant impact on Kosovo’s claim to statehood, recognition is still an unsettled element of international law. This requirement remains as an unsettled concept between the constitutive and the declaratory elements of a state34. The constitutive theory points out that with recognition a state becomes an international subject. Recognition therefore has a constitutive impact because it is an important element for statehood35. This theory exclaims that the legal personality of a state is founded on the political recognition of other states. Various issues with this theory have been raised, with the common argument based on the idea that recognition gives states a one-sided power to decide whether or not an entity deserves statehood. And yet, even with no valid reasons, a state may not grant this much needed recognition to an entity. This argument is very much important in the case of Kosovo which suffers from the non-recognition of 140 states36. Furthermore, this theory suggests that unrecognized states are not bound by the obligations of international law37. And yet, the non-recognition of Israel by the Arab nations has not prevented these nations from repeatedly calling out Israel for its human rights atrocities and violations of the UN Charter38. This same expectation of immunity from international laws is also being applied to Kosovo. The declaratory principle on the other hand exclaims that statehood can be reached when the factual elements of statehood are fulfilled and recognition of other states merely acknowledges the status of the state. Recognition according to this principle does not bring about the existence of a state39. The Badinter Arbitration Commission supported this doctrine with the suggestion that the existence of a state is based on fact and the impact of recognition is merely declaratory40. Support of this view suggests that states which have recognized Kosovo believe in Kosovo’s fulfilment of state elements. Simply put, the declaratory principle focuses on Article 1 of the Montevideo Convention on the Rights and Duties of States, and its presence in any entity are sufficient requirements for statehood. Brownlie discusses that the element of permanent population implies the presence of a stable community41. Kosovo has a population of about two million and has a stable community even with the presence of Kosovar Serbs in their region. Kosovo also has control of an identified territory as determined by the 1974 SFRY Constitution42. Even with Serbia’s competing claims on its territory, Kosovo’s claim on this territory is still irrefutable. The countries of Israel, Kuwait, and the Islamic Republic of Mauritania are states which already exist as states even with the presence of competing claims of its territory43. Crawford explains that the element of government calls for an actual government to possess and exercise authority44. Warbrick believes that Kosovo does not have a government which satisfies statehood requirements because of the fact that various functions of states are being carried out by international authorities including the UNMIK, the European Rule of Law Mission in Kosovo and the NATO45. They remain in Kosovo even with the latter declaring its statehood. Even so, the Constitution of the Republic of Kosovo gained authority and endowed legislative powers to the Assembly of Kosovo and also granting responsibility on the implementation of policies to the government46. The constitution did not establish a role for the UNMIK, but Kosovo’s government authorities welcomed the support of the UN within its borders. The Montevideo Convention supports the concept of a state in terms of its capacity to enter into relations with other states47. However, as observed by Malanczuk, the basis is capacity of a state to enter into relations, not its actuality48. With the support of the international community, Kosovo has the competent diplomatic tools to enter into relations with other states. So far, there has been no treaty or international convention produced to negate or replace the criteria set forth by the Montevideo Convention. Until these requirements of statehood are negated, Kosovo’s evaluation as a state must be based on the standards set forth by the Convention. And based on these elements, Kosovo already fulfils the elements of statehood. 2. Critically identify and analyse any areas of sovereign immunity which are no longer absolute and in respect of which States and their agents cannot generally claim immunity. Sovereign immunity was initially considered an absolute preventive measure to the filing of proceedings against a foreign state49. As soon as states recalled their immunity before the court, the court had no choice but to dismiss and terminate proceedings. Sovereign immunity was based on the state principle which basically stated that a national court may not rule over an act of a foreign government with its own territory50. This sovereign immunity rule however has undergone changes throughout the years, especially with the commercial links penetrating the walls of the various state borders and “citizens of one state began to bear the consequences of actions by a second state”51. As a result, the courts started to implement exceptions in the settlement of state disputes by qualifying between the general authorities of the state and the role of the state as private financial institution. Consequently, most states now apply a restricted sovereign immunity, one which supports immunity based on state behaviour52. State behaviour is based on acta jure imperii, which is immunity given to official state sovereign acts, and acta jure gestionis, where states are considered as private institutions which are not immune to commercial transactions53. State and sovereign immunity are part of customary international law, which are a set of laws which the states adhere to based on their legal obligations; along with treaties, these make up international law54. State practice and the various practices of international organizations make up customary law and are often binding on states. Except for some states, including the UK, states will usually grant other states with immunity based on the belief that it is an obligation under international law55. The overall foundation of immunity gives states the choice for states to treat their subjects as they wish. In this situation, tension between sovereign states and a world seeking the widespread support of human rights norms is likely to emerge. Human rights norms call for states to treat their citizens with human dignity56. Human rights are considered to be universal, a fundamental right of every human being. They do not differ with a citizen’s history, culture, or ideology. Consequently, demands for human rights conventions and laws go beyond the borders of each state to dictate on each government and how it deals with its citizens. This effectually makes human rights “a language of moral intervention”57. Within the context of human rights, some human rights principles are considered jus cogens, which form the foundation of international law accepted by most states58. Customary laws on the other hand allow objections and abstentions in their applications. Jus cogens restrict state behaviour and war crimes, piracy, genocide, and slavery are all qualified as jus cogens norms of peremptory international law59. There is however limited assent on what other norms fall under this category or how these norms can reach such a categorization. Although some disagreements still exist on the categorization of these norms, most jurists agree that prohibitions on torture are part of jus cogens norm60. The House of Lords emphasize that prohibitions of torture are jus cogens norms are fundamental rights which deserves the highest regard and respect under international laws. The Jones case presents a contrast between the customary rules of sovereign immunity with the rule that countries may not veer away from some international human rights rules61. Through human rights as a firm concept in international law, the international community has accepted the existence of other traditional that already “compete with the sovereignty norm for primacy”62. Consequently, traditional ideals of sovereign immunity have been placed under the microscope. In the 1991 UN general debate, Secretary Kofi Annan expressed that state sovereignty is being fashioned by the discussions on globalization. The idea of state equality has seemingly lost its power and the concept of sovereignty has lost its weight63. Sovereign immunity does not anymore have a confident perch in the international scene. In order for the norms in human rights to gain primacy, states must now be held liable for their actions. The arguments being opened up before the National Judicial Authorities is based on the fact that even with restrictive immunity being a new concept, absolute immunity must still be denied in incidents of death, personal injury, or the blatant disrespect for human rights64. All in all, human rights activists have been successful in preventing states from claiming immunity for human rights violations65. Immunity is still however a strong force and tool for states in relation to acts involving their civil personalities. The Jones case plays an important role in these instances. This case opposes claims of immunity as it considers not “whether states receive immunity for international criminal claims, but whether immunity may continue to bar civil claims by the victims of those international crimes”66. Sovereign immunity which does not allow victims to seek damages is very much against universal human rights, and the petitioners in the Jones case requested the court to review the appropriate balance between the usual claims of immunity and human rights. In the end, the place of human rights in the overall scheme of international laws has been firmly supported. References Art.1 of ICCPR and ICSECR, and Art. 27 of ICSECR E. Bankas, ‘The state immunity controversy in international law: private suits against sovereign states in domestic courts’ (2005) 41 I. Brownlie, ‘Principles of Public International Law’, (Sixth edition, Oxford University Press, 2003). A. 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Kuci ‘The Legal and Political Grounds For and the Influence of the Actual Situation on, the Demands of the Albanians of Kosovo for Independence’ (2005) 80 Chicago-Kent Law Review 331, 348. P. Malanczuk, ‘Akehurst’s Modern Introduction to International Law’ (7th Revised ed, Routledge, 1997) 83 B. Martin, ‘Secession and Statehood: The International Legal Status of Kosovo’. University of F. McKay, Civil Reparation in National Courts for Victims of Human Rights Abuse, in Justice for Crimes against Humanity 283, 299 (Mark Lattimer and Philippe Sands eds., 2003). Oppenheim, International Law (8th edn, Vol I, London, 1955) para 71 in D. J Harris Cases and Materials on International Law (5th ed, Sweet & Maxwell, 1998) 145. Otago, Dunedin (2008) http://www.otago.ac.nz/law/oylr/2008/Bridgette_Martin.pdf (accessed 12 January 2012) Max Planck Institute for Comparative Public Law and International Law, ‘Encyclopedia of Public International Law’, (Book 10, Elsevier Science Publishers, 1987). T. Popovic, ‘International Law and Formation of States: Study of Kosovo Independence’. (2008) http://www.tanjapopovic.eu/docs/International%20Law%20and%20Formation%20of%20States%20-%20Study%20of%20Kosovo%20Independence.pdf (accessed 12 January 2012) M. Shaw International Law (4th ed, Cambridge University Press, 1997), 297. The Constitution of the Republic of Kosovo 15 June 2008 http://www.kushtetutakosoves.info/repository/docs/Constitution.of.the.Republic.of.Kosovo.pdf (accessed 12 January 2012) The Secretariat of the International Commission of Jurists Geneva, 'The Events in East Pakistan, 1971: A Legal Study', 1972 part V S. Schulz, ‘Limiting Sovereign Immunity in the Age of Human Rights, (2008) 21 Harvard Human Rights Journal, 106. D. Stewart, ‘The UN Convention on Jurisdictional Immunities of States and Their Property’, (2005) 99 AM. J. INT’L. L. 194, 194. M. Vickers, ‘The Albanians: A Modern History’ (I.B.Tauris, 1995) 97. M. Vickers, ‘Between Serb and Albanian: A History of Kosovo’ (London: Hurst & Company, 1998) p. 3. T. Vingerling, ‘Kosovo: independence vs. legality? Assessing the extent of the legality of the independence of Kosovo from international and European law’ (2008) Twente University http://essay.utwente.nl/59185/1/scriptie_T_Vingerling.pdf (accessed 12 January 2012) C. Warbrick, ‘Kosovo: The Declaration of Independence’ (2008) 57 International and Comparative Law Quarterly 675, 675. W. Werner & R. Wessel, ‘Internationaal en Europees Recht; Een verkenning van grondslagen en kenmerken’, (Europa Law Publishing, Groningen, 2005) pp. 206 Read More